Thou Shalt Not Sue Sony

from the can't-let-people-have-rights dept

AC alerts us to a change in the new Sony PlayStation Network terms of service that basically says that you agree not to sue the company. Honestly (and Sony pointed this out in its defense), such clauses are pretty common. It is debatable how enforceable some of these clauses are, but they say that you have to go to arbitration, rather than sue. The terms also bar participating in class action lawsuits, which seems much more questionable. Where Sony gets ridiculous is in claiming that this change "is designed to benefit both the consumer and the company by ensuring that there is adequate time and procedures to resolve disputes." That makes me think of a two syllable word whose first four letters are bull. Come on. At this point, everyone knows that binding arbitration between a company and a consumer wildly favors companies. A study from a few years back found that companies win in arbitration against consumers 95% of the time. Sony knows this. So its move is not about protecting consumers at all, and it's insulting for it to imply that it is.

Re:

I have no idea if this would ever hold up in court, but I told my 9 year old son that he doesn't have permission to accept any agreements on our PS3, but then also told him that if the PSN store and Netflix won't work unless someone accepts them. I've never accepted any Sony agreements, but both of those things surprisingly work on my PS3 right now.

Re: So, "agreeing" to the PS TOS means..

Actually I think this is restricted to problems relating directly to PSN. If your PS3 explodes and destroys your house you can still take them to court. (Having said that I haven't read the full agreement - so I stand to be corrected by anyone with more information.)

Re: Re: So, "agreeing" to the PS TOS means..

The security breach was of the PSN - the hackers weren't after my FF13 save games, they were after credit card numbers and other personal info from our PSN accounts.

So it appears that this is an attempt by Sony to prevent customers from suing them for their egregiously poor security measures. For this reason, the class action bar is especially troubling, as that would be the most effective way for Sony to be sued case like this, where the damages are spread out among a large number of people in small increments. And the threat of class action suits is generally the only thing keeping companies honest absent a regulatory regime (and even in a regulatory regime, class action lawsuits can be more effective for a variety of reasons, such as regulatory capture or an inadequate enforcement scheme). Although they aren't terribly effective at compensating people (except lawyers), they are still better than arbitration).

Re: Aha

Re: Re: Aha

Electronics today have a very tight integrated supply line, even if you buy a Motorola. Samsung, Apple or any other electronic chances are that you are still buying Sony products, just not the branded one.

Re: Re: Re: Aha

My reply was to the guy that said you can opt out via mail. So if you already clicked through Sony is giving people a way out. Their way out bricks the PS3 for people that rely on its online capabilities. If ever there was a reason to have an alternate OS this is it.

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To be fair to Sony it wasn't all bad in the beginning. I am an old school fan of the Play Station and even their walkmans where good. My first MP3/cd player was from them and it worked fantastic for years. So they have decent products, just of late they have really dumb marketing strategy and its turning a lot of people, like me, away.

Nice move Sony. Instead of showing the world how confident you are in your new network and how secure it is, you do an end-run around your customers and try to limit your liability by removing our right to sue. You should be putting that energy into your infrastructure.

I remember your rootkit fiasco and the TOS you tried to force down peoples throats then. Seriously? If I declare bankruptcy I have to delete all my music?

Mike unfortunately you're wrong about banning participating in class action lawsuits being illegal. The US Supreme Court recently ruled in the last few years that this is perfectly legal in a controversial 5-4 ruling. I forget the name of the case, but the case was about a cell phone company in California. The cell phone company advertised free cell phones if you sign up for their plan. But then when customers went to get their 'free' cell phone they were charged over 30 dollars in a state tax.

Obviously 30 dollars in tax means that the phones weren't really free. So someone started a class action lawsuit against the cell phone company. I believe that the cell phone company lost in court until they appealed to the Supreme Court, arguing that their contract bars class action lawsuits, and the idiots in the supreme court sided with the cell phone company.

This means that class action lawsuits will soon be pretty much dead in the US, once all companies not run by complete idiots amend their contracts to ban class action lawsuits. This pretty much guarantees that companies can get away with stuff like that Cell Phone company, because no one is going to waste their time suing over $30 dollars. The lawsuit itself would cost the victim much more then $30 dollars even if they won.

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That would be fine, if arbitration almost always didn't work in the consumer's favor. It was also the case, as I understand it, that if arbitration fails, you have a statutory right to go to court in that case.

The terms only pertain to the PSN service, which you agree to if you want to use it. Thing is, the "agreement" has about as much tooth to it as an elderly gumline, given that it's possible to "agree" to the terms from your dog having sat its ass on your controller, hitting the button that triggers the "agreement" to commence.

Typo

The sad truth

Class action lawsuits will not disappear completely if people would not agree to TOS contracts forbidding them. Companies (smart companies, this may not include Sony) would catch on that including this bull was costing them money and customers and then they'd just concentrate on good service instead.

Playing games and having their PS3 is more important to most people. The toy they get to play with is more important than the possibly of getting to sue when everything goes south.

But sadly this won't happen. I never read TOS contracts so I can't blame anyone, but news articles like this alert myself and others to what Sony is trying to pull over on us. Most people will click "agree" and move on. I won't, I haven't bought a Sony product since my PS2 and I doubt I ever will again. There's too many reasons why to list here.

To everyone who's reading this story (on any news site, not just this one), you know what you're doing by agreeing to the terms and you know what the company's been capable of in the past so good luck.

Re: The sad truth

If you don't read TOS contracts, and I don't read TOS contracts, and the VAST majority of people don't read them, are their terms still binding? They make them so easy to click through because the know people won't read them. They force you to scroll to the bottom, but that's no guarantee of reading, comprehension, or even the user being of legal age to agree to such terms. TOS "agreements" are almost always unfair to the consumer, and there should be a guarantee of an acceptable level of service in return for the rights you give up. Otherwise the courts should see them for the scams they are.

Re: The sad truth

"Class action lawsuits will not disappear completely if people would not agree to TOS contracts forbidding them. "

How can they when the TOS is specifically binding?

" Companies (smart companies, this may not include Sony) would catch on that including this bull was costing them money and customers and then they'd just concentrate on good service instead."

No, most companies go the arbitration route, which runs counter to being able to sue in open court by leagues.

1) Arbitration doesn't report the results of the mediation
2) There is huge incentive for judges to favor with the plaintiffs, who are usually businesses.
3)The arbitration judges are usually gone if they favor defendants.

So why not sue in open court with all of the precedents? Because the law allows this binding in arbitration.

The only thing I remember about arbitration is how Al Franken pushed for the denouncement of arbitration.

The move "Hot Coffee" also discusses this, but be aware, it's quite controversial. I'm sure an AC will come here to say the movie is bad, under the guise of working for the Chamber of Commerce (since they're portrayed quite badly in the move) so I'll leave off by saying, Your mileage may vary.

Re: Re: The sad truth

You don't buy it. Hence, no reason to agree to their terms. I haven't for years. Believe me, it's quite possible.

The rest of the post becomes kind'a moot so I'll just stop there.

I look into a company and product before I spend money on it. If I don't agree with practices then they don't get my money and I have nothing to do with them. If more people did that then... (continues rant on soapbox)

Fortunately this will never apply to me, as I will never buy another Sony product ever again. Honestly wouldn't surprise me to find out Microsoft and its XBOX Live has something similar but MS, to my knowledge, has never let any of my personal information be hacked.

The machine will eventually brick anyway. Just like that nice new Ipad you just bought. Technology is flawed by its very nature. As long as I can play Final Fantasy, listen to my Ipod and toast so (well) toast at least for a while I'll be happy.

of course, you don't KNOW about the TOS to not sue until you have opened and used the console, meaning you can't return it.
So... when Is congress going to crack down on this? oh
wait, that requires action.

Amusing.

Rather amusing to read all the people who are now stating they won't buy Sony's products in the future. Sony's despicable treatment of their customers has been appalling for so long, but what is it *today* that offends you so much that their prior poor behavior didn't?

Won't affect me, anyway. Their isn't a SONY logo in my house, anywhere, not even on a blank CD. There are, however, large screen TVs, stereos, clock radios, and a number of other things happily purchased from other manufacturers. I don't just advise it, I actually vote with my wallet.

How enforceable is it when you are not able to read the terms of service until you set up your PS3 and connect it to the Internet? Also, what about people who have purchased games through the PSN that require PSN connectivity to run? My son couldn't play Fat Princess until the terms were agreed to.

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Makes most of what your kids sine or say yes to mute in any legal contract and since 90% of all PS3 accounts are kids accounts don't sweat the little shit Sony would not have a leg to stand on in court.

Can I...?

Would it be feasible to file a class action suit against Sony for taking away functionality of my already-purchased PS3 and PSP? Since I will never agree to this ridiculous contract clause, and I can't seem to find the button that allows me to strike out a clause and send it back for deliberation, I have lost my ability to update my systems, play multiplayer-only games that I have purchased (Brink; even the single player requires an internet connection), and cannot return, since they are already opened, as well as a few other functions

Look like I said in there country this might fly but in the USA there is a lot of legal reasons why a court will not take Sony's side, the list is long but just use your heads. The person that wrote this does not know law he is just informing people what was in the new TOS Sony sent out yesterday.

The courts have, essentially, ruled that there is no need for a meeting of the minds or an actual signature for contract terms to be binding. The company simply needs to publish them to you and include a clause that states that use of the service equates to signing the contract.

But if that's legally true, then it is true both ways.

Either in a separate mailing or printed on a check used to pay the first bill, include an image of the sections of the terms of service you reject, with those clauses lined out and the statement that continuing to provide service constitutes a binding agreement. Mail it to the company.

Suddenly, you have the same type of agreement with them that they do with you. Equally binding, equally enforceable, and if their shrinkwrap EULA is binding on you, then yours binds them too. And suddenly you can sue again.

I just saw thhis comment on Arstechnica...

I saw the email update from Sony about this yesterday. I thought that TOS update looked fishy. The email is set up to show you redlines to indicate the diff between the old and new legalese - something they probably don't want you to understand. So, if they're pointing it out, it's so they're covered in the future. "We took the extra mile and pointed out the differences!"

What got my notice was that this same TOS update removes references to "purchases" of content on the PSN in favor of the term "license" or "content license". So, after this update, you aren't buying content anymore from PSN... You're just giving them money for a license. Sounds questionable for older purchases (they shouldn't be able to just declare old purchases are now rentals).

DELETED WORDING (any reference to owning is removed)
"purchase of rental content, subscriptions and other prepaid products"
"Upon termination of this Agreement, Your Account, or license to any Property, You will immediately cease use of the Property and delete or destroy copies of the Property."
“own,” “ownership”

I called my legal counsel and he said I was right that Sony can't cut off any thing bought before this new TOS that came out yesterday and if they do there breaking the law. When we bought the systems, games and add-on packs we said yes to there terms and they have to stick to those terms if we do not agree with new terms they try to make us sine. They have to keep providing the same services for items bought before Sep 15, 2011 or it breaks blackmail laws (holding something a value that was payed for tell you sine a new contract is blackmail under CA Penal Code 518 and federal blackmail statute (P.L. 103-322, 108 Stat. 2147)). Only systems and games gotten after the new TOS would be forced by law to stick to the new TOS. Cutting off Peoples access to items bough like the 47 add-on packs I have gotten in the past 5 years for not agreeing to new TOS is BLACKMAIL any way you look at it.

Wonder if this is world wide, since it is absolutely voidable under Australian law and as far as I am aware NZ, and most probably EU consumer laws (??).

Also it cannot be retrospective for any products already purchased and used. So really only for new PS3, PS Vita, PSN owners.

Though when you read their Terms it would of been interesting if it was around when GeoHot was sued, since under these terms they would of breached them themselves for suing him (or am I reading it wrong).

As for whether it is legal in the USA for these terms to be enforced, if so, it is even further proof of why the USA needs better consumer protection statutes and tort reform.

I just got back from talking to a friend who is a CA district attorney and he is going to his boss Monday to see if charges can be charges brought against Sony for blackmail witch non of us need a lawyer for since it is a state law and this is only the first legal action I am taking to fight back.

I has a question for the hivemind.
I do not own a PS3 and I don't begin to know where to find the answer to my question.

These TOS are for the PSN, to get the updated code bits for newer DRM'd games and BlueRay keys/features do you not have to use the PSN network to get these things? Or do they have a different channel to deliver these things to the consoles?

I ask because there was a story in my recent memory about a game coming out that to play at all required you to connect to the PSN network and let them update your firmware otherwise your new $60 game was just a brick that you unwrapped and could not return.

Is what they are doing as bad as I think it is?

They want you to settle for a machine that will no longer do "everything", because your unwilling to accept TOS that they modified to protect themselves from being punished for misdeeds they might continue to do in the future?

Like right now I have been locked out from 5 games, 47 Add-on packs The one pack for Fallout 3 was $50 and you can only get the Add-on pack from PSN but (PC and Xbox once you buy the add-on packs there yours), netflix and all online PSN dependant games.

Arbitration

The reason companies prevail 95% of the time isn't because arbitrators are inherently biased in favor of companies - it's because the vast majority of the cases that go to such arbitrations are essentially uncontested collections actions. And while the potential for arbitrators to have such bias is obvious, I've never seen any data suggesting it plays out that way.

In fact, in the cases people seem to be concerned about here (suits against the company), arbitration is actually more consumer-friendly, as it's easier and much cheaper than going to court. Sony's not concerned about those cases - which are few and far between - but rather the ability to use arbitration as a quick and cheap method for bringing its own claims.

How legit?

I do wonder on that 5% stat being the same as court cases. I used to work for a major tech co and people would sue us over the stupidest things. I was the one people in charge of helping people with special cases. I had checks cut for 100's to 1000 of dollars some time due to some horrible issue where are product caused some sort of real damage (like causing a small fire) or Giving refunds or free products for lesser issues. If the user has a valid claim it was't a big deal. But some people would claim the silliest things like one of our software products that did't even install into the PC blew there pc power supply or made there cable modem fry Many of these jokers that I told that there claims were impossible or would demand insane compensation would sue us and get tossed by the first judge who looked at it. Frivolousness law suits are nothing new. I just don't know.

Re: How legit?

What about UK, you can't sign away your rights here, we just bought a PlayStation 2nd hand and apparently it's been banned from the playstation network, we can't even play offline games because they demand Playstation network membership to progress past a couple of minutes of gameplay (EA and others). It's about time people in the UK started suing sony for destruction of many thousands of £ worth of property.

Sony haven't answered e-mails and the notice of the ban doesn't give a time-frame.

This is the tyrrany the US gets for no executing war criminals in 1946. Japans excuse for accepting 5 refugees a year is that any more and it would be harmful for the refugees, so therefore its a good thing for the refugees because they would "not get along with japanese society". meaning there would be racism and social unrest in a 95% japanese society if it accepted foerigners so leting them suffer in refugee camps is an acceptable alternative to headaches for the gov in accepting them in. "WE say it benefits everyone and all you have to do is lie down and accept our version of reality"